CVP contractors seek Temporary Restraining Order on Smelt BiOP

DIEPENBROCK

HARRISON A PROFESSIONAL

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{00217342; 1} [PROPOSED] ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

DANIEL J. O’HANLON, State Bar No. 122380 K. ERIC ADAIR, State Bar No. 150650 HANSPETER WALTER, State Bar No. 244847 REBECCA R. AKROYD, State Bar No. 267305 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor Sacramento, CA 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 EILEEN M. DIEPENBROCK, State Bar No. 119254 JON D. RUBIN, State Bar No. 196944 JONATHAN R. MARZ, State Bar No. 221188 DIEPENBROCK HARRISON 400 Capitol Mall, 18th Floor Sacramento, CA 95814 Telephone: (916) 492-5000 Facsimile: (916) 446-4535

Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT Additional Counsel Listed on Last Page

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION THE DELTA SMELT CASES

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. (Case No. 1:09-cv-407)

STATE WATER CONTRACTORS v. SALAZAR, et al. (Case No. 1:09-cv-422)

COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-cv-480)

METROPOLITAN WATER DISTRICT v. UNITED STATES FISH & WILDLIFE SERVICE, et al. (Case No. 1:09-cv-631)

STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. Case No. 1:09-cv-892)

CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA [PROPOSED] ORDER GRANTING PLAINTIFFS SAN LUIS & DELTA MENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT’S MOTION FOR A TEMPORARY RESTRAINING ORDER

DATE: February 10, 2010 (Requested)TIME: 12:00 p.m. (Requested) COURTROOM: 3 JUDGE: Hon. Oliver W. Wanger

Case 1:09-cv-00407-OWW-DLB Document 566 Filed 02/09/2010 Page 1 of 4

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{00217342; 1} -1- [PROPOSED] ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

This matter came on regularly for hearing on February 10, 2010. Plaintiffs San Luis &

Delta-Mendota Water Authority (“Authority”) and Westlands Water District (“Westlands”)

(collectively “San Luis Plaintiffs”) were represented by Kronick, Moskovitz, Tiedemann &

Girard by Daniel J. O’Hanlon, Esq. and by Diepenbrock Harrison by Eileen M. Diepenbrock,

Esq. Plaintiff Westlands was represented by Thomas W. Birmingham, Esq. Federal Defendants,

including the Secretary of the Interior Kenneth Lee Salazar, the United States Department of the

Interior, U.S. Fish and Wildlife Service (“FWS”), Acting Director of the FWS Rowan Gould,

Regional Director of FWS Ren Lohoefenor, United States Bureau of Reclamation

(“Reclamation”), Acting Commissioner of Reclamation J. William McDonald, and Regional

Director Donald Glaser were represented by William J. Shapiro, Trial Attorney, Natural

Resources Section, and James A. Maysonett, Esq., Trial Attorney, Wildlife and Marine

Resources Section, U.S. Department of Justice. Defendant-Intervenors The Bay Institute and

Natural Resources Defense Council were represented by Earthjustice, Trent W. Orr, Esq., and

Natural Resources Defense Council, Katherine Poole, Esq.

The Court has fully considered the briefs and evidence filed in support of the Motion for

Temporary Restraining Order filed by San Luis Plaintiffs, and the oral arguments, testimony and

documents admitted in evidence. Accordingly, the Court now enters the following order:

IT IS HEREBY ORDERED that the Motion for Temporary Restraining Order is hereby

GRANTED, and the Court hereby restrains and enjoins Federal Defendants, and their officers,

agents, servants and employees, and any other parties, persons or entities who are in active

concert or participation with them, as follows:

1. Federal Defendants shall not implement any aspect of Action 2 of Component 1

of the Reasonable and Prudent Alternative (“RPA”) included in the December 15, 2008,

biological opinion on the coordinated operations of the Central Valley Project (“CVP”) and the

State Water Project (“SWP”) in California (“BiOp”).

2. This Temporary Restraining Order shall remain in place until such time as this

Court can issue a ruling on San Luis Plaintiffs’ Motion for Interim Remedy/Preliminary

Injunction, Doc. 447.


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{00217342; 1} - 2 - [PROPOSED] ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

3. This Temporary Restraining Order is effective on San Luis Plaintiffs’ filing an

undertaking in the sum of $_______.

Dated: __________________ HONORABLE OLIVER W. WANGER UNITED STATES DISTRICT JUDGE


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{00217342; 1} - 3 - [PROPOSED] ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

IDENTIFICATION OF COUNSEL Thomas W. Birmingham, State Bar No. 110898 General Manager/General Counsel Westlands Water District 3130 N. Fresno Street Fresno, CA 93703 Telephone: (559) 224-1523 Facsimile: (559) 241-6277


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{00217159; 1} NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER










CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA NOTICE OF MOTION AND MOTION OF PLAINTIFFS SAN LUIS & DELTA MENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT’S MOTION FOR TEMPORARY RESTRAINING ORDER



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{00217159; 1} -1- NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that, commencing on February 10, 2010, at 12:00 p.m., or

beginning as soon thereafter as the matter can be heard, in Courtroom 3 of the above-entitled

Court, located at 2500 Tulare Street, Fresno, California, Plaintiffs San Luis & Delta-Mendota

Water Authority and Westlands Water District (collectively, “San Luis Plaintiffs”) will pursuant

Rule 65 of the Federal Rules of Civil Procedure, L.R. 231 of the Local Rules of Practice for the

United States District Court, Eastern District of California, and all other applicable rules, apply

and move for and request a temporary restraining order (“TRO”) enjoining implementation of

“Action 2” of the “Component 1” of the reasonable and prudent alternative (“RPA”) of the

United States Fish and Wildlife Service’s (“FWS”) December 15, 2008, biological opinion

regarding the delta smelt (“BiOp”) (“Motion for TRO”).

This Motion for TRO is made on the grounds that San Luis Plaintiffs and the water users

they represent are in immediate danger of irreparable harm because of Action 2’s

implementation prior to disposition of San Luis Plaintiffs’ pending motion for interim

remedy/preliminary injunction (“PI Motion”; Doc. 447). That PI Motion seeks relief from

Components 1 and 2 of the BiOp’s RPA on alternative grounds: 1) that appropriate interim relief

from the BiOP is warranted in light of the Court’s determination that the U.S. Bureau of

Reclamation (“Reclamation”) violated the National Environmental Policy Act (“NEPA”; 42

U.S.C § 4321, et seq.) when Reclamation provisionally adopted and implemented the RPA in the

BiOp without performing any prior NEPA analysis, San Luis & Delta-Mendota Water Authority

v. Salazar (Case No. 1:09-cv-00407-OWW-DLB), Doc. 399, Memorandum Decision re Cross-

Motions for Summary Judgment on NEPA Issues; and/or 2) San Luis Plaintiffs have

demonstrated a strong likelihood of success on the merits of their claims that the BiOp, including

its RPA and incidental take statement, is unlawful, arbitrary and capricious agency action under

the Endangered Species Act (“ESA”; 16 U.S.C § 1531, et seq.) because (a) the BiOp fails to

establish a proper environmental baseline or to determine project effects and jeopardy in the

manner required by law; (b) Components 1 and 2 of the RPA are not supported by the best

available science; and (c) the Incidental Take Statement arbitrarily included and/or excluded


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{00217159; 1} - 2 - NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER

data; and/or 3) the ESA violations relating to the issuance and implementation of BiOp render

unlawful the Old and Middle River (“OMR”) restrictions required by Component 1 and

Component 2 of the BiOp’s RPA. San Luis Plaintiffs’ Motion for TRO is similarly made on the

grounds that the BiOp is not, as required by the ESA, supported by the best available scientific

and commercial data, and instead is grounded in surmise and upon FWS’s arbitrary, capricious,

and inconsistent actions.

San Luis Plaintiffs and the water users they represent will suffer irreparable harm unless

Defendants are restrained from implementing Action 2’s OMR flow restrictions from February

10, 2010, through disposition of San Luis Plaintiffs’ PI Motion. Further, the balance of

hardships and the public interest, including the interest in the health and safety of people on the

west side of the San Joaquin Valley, strongly favors an interim remedy or injunctive relief.

San Luis Plaintiffs filed a motion for temporary restraining order on January 27, 2010

(Doc. 511), which was heard on February 2, 2010, and denied on the grounds that Component 1

had not been implemented (Doc. 555 (“Order Denying Without Prejudice Application for

Temporary Restraining Order”)).

San Luis Plaintiffs base their Motion for TRO on this notice of motion and motion; the

accompanying memorandum in support of the Motion for TRO; the accompanying declarations

of Thomas Boardman, and Daniel J. O’Hanlon, Esq.; the accompanying Request for Judicial

Notice and supporting declaration of Jonathan R. Marz; all of which are filed and served

herewith. San Luis Plaintiffs further based their Motion for TRO on:

• All papers filed by San Luis Plaintiffs in support of their previous motion for

temporary restraining order, including its notice of motion and motion (Doc. 511);

its accompanying memorandum in support of the Motion for TRO (Doc. 512); its

accompanying declarations of Daniel G. Nelson (Doc. 513), Russ Freeman (Doc.

514), Daniel J. O’Hanlon, Esq. (Doc. 515), and Thomas Boardman (Doc. 518), ,

and; its accompanying Request for Judicial Notice and supporting declaration of

Jonathan R. Marz (Doc. 516); as well as the documents filed by other plaintiffs in

support of San Luis Plaintiffs’ previous motion for temporary restraining order;


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• All papers filed by San Luis Plaintiffs in support of their pending PI Motion

including, but not limited to, its notice of motion and motion (Doc. 433); its

supporting memorandum (Doc. 447); and the declarations of Daniel G. Nelson

(Doc. 443), Thomas Boardman (Doc. 444), Russ Freeman (Doc. 438), Chris Hurd

(Doc. 439), Joe Del Bosque (Doc. 442), Todd Allen (Doc. 440), Dana Wilkie

(Doc. 441) and Charles H. Hanson (Doc. 490) in support thereof; San Luis

Plaintiffs’ reply papers filed in support of the PI Motion (Docs. 491, 492, and

493); as well as the documents filed by other plaintiffs in support of San Luis

Plaintiffs’ PI Motion;

• The previously filed declarations in these Consolidated Smelt Cases of Dr. Bryan

Manly (Docs. 347 and 397) Dr. Ray Hilborn (Docs. 348 and 393), Dr. Charles H.

Hanson (Docs. 344 and 395), Dr. Richard B. Deriso (Docs. 167, 396 and 401),

Tara Smith, P.E. (Doc. 398) and Aaron Miller, P.E. (Doc. 400);

• The previously filed declarations in support of San Luis Plaintiffs’ prior motion

for preliminary injunction (Doc. 31) of Todd Allen (Doc. 34), Shawn Coburn

(Doc. 35), Todd Diedrich (Doc. 36), Russ Freeman (Doc. 37), Charles H. Hanson

(Doc. 38), John Harris (Doc. 39), William D. Harrison (Doc. 40), Baldomero

Hernandez (Doc. 41), Joan Maher (Doc. 42), Daniel G. Nelson (Doc. 43), Marcia

Sablan (Doc. 44), Robert Silva (Doc. 45) James Snow (Doc. 46), David Wilke

(Doc. 47); and

• All pleadings and papers on file in this action; and such other matters as may be

presented to the Court at the time of the hearing. Dated: February 9, 2010 KRONICK, MOSKOVITZ, TIEDEMANN &

GIRARD, A Law Corporation DIEPENBROCK HARRISON A Professional Corporation

By: /s/_[Eileen M. Diepenbrock]______________

EILEEN M. DIEPENBROCK Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT


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{00217282; 2} MEMORANDUM IN SUPPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER









STEWART & JASPER ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (Case No. 1:09-cv-892)

CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA MEMORANDUM IN SUPPPORT OF PLAINTIFFS SAN LUIS & DELTA-MENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT’S MOTION FOR TEMPORARY RESTRAINING ORDER


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{00217282; 2} - i - MEMORANDUM IN SUPPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................1

II. BACKGROUND FACTS..................................................................................................4

A. RPA Component 1. ................................................................................................4

B. Irreparable Harm Will Occur As A Result Of Action 2’s Implementation. ..........5

1. Water Losses Attributable to Action 2.......................................................5

2. Action 2’s Effects On Water Supply. ........................................................6

3. Action 2’s Impact On The San Joaquin Valley’s West Side. ....................7

III. LEGAL ARGUMENT.......................................................................................................8

A A TRO Is Necessary And Proper To Preserve The Status Quo Pending Disposition Of San Luis Plaintiffs’ PI Motion. .....................................................8

B. A TRO Should Issue Based on Reclamation’s NEPA Violation...........................8

C. San Luis Plaintiffs Are Likely To Succeed On The Merits Of Their ESA Claims...........................................................................................................10

1. Action 2 Is Unlawful Because FWS Has Failed To Show That Limiting Entrainment Is Necessary To Avoid Jeopardy............................11

2. The Severe OMR Restrictions In RPA Action 2 Are Unsupported By The Data In The BiOp..........................................................................12

D. The Delta Smelt Are Not Located Near The CVP And SWP Pumping Facilities, The Level Of Take Is Well Within The BiOp’s Limits And Significantly Less Than The Amount Caught And Likely Taken By The California Department Of Fish And Game When Undertaking The Kodiak Trawl Survey...12

E. Implementation of Action 2 Is Likely To Result in Irreparable Harm To San Luis Plaintiffs their Water Use. ......................................................................13

F. The Balance Of Equities And Public Interest Weigh In Favor Of The TRO. .......14

G. A TRO Until Resolution Of San Luis Plaintiffs’ PI Motion Is Necessary And Proper. ............................................................................................................14

IV. CONCLUSION..................................................................................................................16

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{00217282; 2} - ii - MEMORANDUM IN SUPPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

TABLE OF AUTHORITIES

FEDERAL CASES

Bennett v. Spear, 520 U.S. 154 (1997).....................................................................................................14

CIENA Corp. v. Jarrard,

203 F.3d 312 (4th Cir. 2000) .......................................................................................15

Cal. ex rel. Lockyer v. United States Department of Agricultural, 2009 U.S. App. LEXIS 19219 .......................................................................................9

Connell v. Dulien Steel Products, Inc.,

240 F.2d 414 (5th Cir. 1957) .......................................................................................16

Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Automobile Truck Drivers, 415 U.S. at 439 (1974) ..................................................................................15

High Sierra Hikers Association v. Blackwell,

390 F.3d 630 (9th Cir. 2004) .........................................................................................9

Horn Abbot Ltd. v. Sarsaparilla Ltd., 601 F. Supp. 360 (N.D. IL 1984).................................................................................16

Klamath Siskiyou Wildlands Ctr. v. Boody,

468 F.3d 549 (9th Cir. 2006) ...................................................................................9, 11

Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005) .........................................................................................9

SEC v. Unifund Sal,

910 F.2d 1028 (2d Cir. 1990).......................................................................................16

FEDERAL STATUTES AND RULES

5 U.S.C. § 706(2)(A)............................................................................................................9

16 U.S.C. § 1531..................................................................................................................3

Fed. R. Civ. P. 65(b) ................................................................................................8, 15, 16

Fed. R. Civ. P. 65(b)(2)......................................................................................................15

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{00217282; 2} -1- MEMORANDUM IN SUPPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

Less than one week ago, an attorney for the United States Fish & Wildlife Service

(“FWS”) represented to the Court: This year we have a favorable distribution as of now for the smelt. They turned left into the north part of the Delta, so they are not presently, as of the most recent data, within the influence of the pumps, which is why component one has not been triggered and there's nothing for the Court to enjoin.

(February 2, 2010, Hearing Transcript, Rough Draft (“Hrg. Tr.”), at 20:2-12.) New data

available to San Luis Plaintiffs since that representation was made do not indicate that the

distribution of delta smelt has changed. They show that delta smelt remain in the north, west

section of the Delta. Exhibits 1-A and 1-B to the “Request for Judicial Notice in Support of

Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District’s Motion for

Temporary Restraining Order” (“RJN”), filed concurrently herewith.1 Notwithstanding, on

February 8, 2010, Plaintiffs San Luis & Delta-Mendota Water Authority (“Authority”) and

Westlands Water District (“Westlands”) (collectively, “San Luis Plaintiffs”) received notice that

beginning on February 10, 2010, FWS will require the United States Bureau of Reclamation

(“Reclamation”) and the California Department of Water Resources (“DWR”) to operate to the

requirements set forth in Reasonable and Prudent Alternative Action 2 of the 2008 delta smelt

biological opinion (“BiOp”). Federal Defendants’ Notice of Implementation of RPA

Component 1, Action 2 (Doc. 558), p. 1. Implementation of that action should be immediately

enjoined.

The past two years of pumping restrictions that are supposed to benefit delta smelt,

coming on top of naturally dry hydrological conditions, have produced a crisis on the west side

of the San Joaquin Valley. Hundreds of thousands of acres have been fallowed, orchards have

been destroyed, thousands of workers have lost their jobs, and communities have been decimated

1 Exhibit 1-A to the RJN is a “Delta Smelt Distribution Map” from the “Spring Kodiak Trawl Survey #11 of 2010.” Exhibit 1-B to the RJN is a “Delta Smelt Distribution Map” from the “Spring Kodiak Trawl Survey #1 of 2010.” Exhibit 1-B was part of San Luis Plaintiffs’ request for judicial notice in support of their motion for temporary restraining order filed in January 2010 (see “Exhibit 1” to Doc. 516), and is supplied again with this motion for the convenience of the Court.

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{00217282; 2} - 2 - MEMORANDUM IN SUPPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

as income levels plummet, people leave, and the tax base disappears. In this environment, the

loss of every additional acre foot of water supply is keenly felt by the farms and communities of

the region. The FWS-imposed restrictions upon Old and Middle River (“OMR”) flows under the

BiOp threaten to substantially restrict the ability of Reclamation to pump available, desperately

needed water. This water must be pumped now, or be forever lost. It is for precisely this reason

that the Court, on Friday, February 5, 2010 issued a temporary restraining order (“TRO”) in the

Consolidated Salmonid Cases, 1:09-CV-01053 OWW DLB (Doc. 202) (“Salmonid TRO”).

A TRO now too is necessary in this action. FWS came before this Court in 2007 and

asked this Court to significantly restrict Central Valley Project (“CVP”) and State Water Project

(“SWP”) operations. Based on the concerns it heard from FWS regarding the effect of CVP and

SWP operations and the potential extinction of delta smelt, the Court listened to FWS and

ordered implementation of an interim remedy. More than a year later, FWS significantly

regulated the CVP and SWP, through the RPA imposed by the BiOp. Neither FWS nor

Reclamation considered alternatives that might provide a level of protection similar to the RPA

but might avoid devastating the farms and communities on the west side of the San Joaquin

Valley. The regulations and the harm are for naught. The delta smelt continue to decline. Some

may assert the continued decline was due to still insufficient regulation of the CVP and SWP.

The San Luis Plaintiffs demonstrate the harms and likely continued decline of Delta smelt are

due to ill-conceived and misplaced regulation. The time has come to stop the unnecessary

harms. FWS cannot be allowed to regulate the CVP and SWP simply because under the BiOp it

can.

Under Action 2 of RPA Component 1, FWS may set OMR flows between -1,250 and -

5,000 cfs. Action 2 has now been triggered, and FWS currently set OMR flows at no more

negative then -4,000 cfs. Federal Defendants’ Notice of Implementation of RPA Component 1,

Action 2 (Doc. 558), p. 1. FWS will continue to monitor salvage by the CVP and SWP. Id.,

Exhibit 1. If expanded salvage exceeds four (4) smelt per day (actual salvage is greater than 1),

negative OMR flows will be further decreased by 1,000 cfs. Id. The increased restrictions will

continue until (a) expanded salvage is less than or equal to four (4) (actual salvage is less than or

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equal to 1), (b) OMR flows average no more negative than 1,250 cfs, or (c) the Smelt Working

Group makes an alternative recommendation. Id. Action 2 will control CVP and SWP

operations beginning on February 10, 2010. Id. The restriction will occur despite the fact that

the most recent survey data show the majority of the smelt actually are distributed in the

Northern and Western parts of the Delta, Exhibits 1-A and 1-B to the RJN, there is a dearth of

delta smelt in the vicinity of export pumping facilities, Id., and the level of take by the CVP and

SWP is well within the take authorized by the BiOp and significantly below the amount of Delta

smelt caught and likely taken by the California Department of Fish and Game through its Kodiak

Trawl Surveys. Exhibits 1-A, 1-B, and 2-A to 2-C to the RJN.

Not only do the data thus demonstrate the lack of harm to the overall population of the

Delta smelt, but the RPA is also being invalidly implemented. As the Court found in granting

Plaintiffs’ motion for summary judgment, “Reclamation violated [the National Environmental

Policy Act (“NEPA”; 42 U.S.C. § 4321, et seq.)] by failing to perform any NEPA analysis prior

to provisionally adopting and implementing the [] BiOp and its RPA.” Findings of Fact and

Conclusions of Law Re: Plaintiffs’ Motion for Preliminary Injunction (Doc. 399), at pp. 46-47.

Consequently, the unlawful action should not be allowed to stand, especially in light of the

extremely dire hardships to the San Luis Plaintiffs that greatly outweigh any danger to the

species overall. Additionally, the RPA, including Action 2 of Component 1, is invalid because

the BiOp is not, as required by the Endangered Species Act (“ESA”; 16 U.S.C § 1531, et seq.),

supported by the best available scientific and commercial data, and instead is grounded in

surmise and upon FWS’s arbitrary, capricious, and inconsistent actions.

Implementation of Action 2 now would significantly reduce the availability of water to

San Luis Plaintiffs in the irrigation season, with no expectation that the water amounts lost can

be recovered. Indeed, implementation of Action 2 would likely result in the loss of at least 2,900

to 4,000 acre-feet of water per day, or 115,000 acre-feet to 160,000 acre-feet of water over the

period Action 2 is expected to remain in effect. Declaration of Thomas Boardman in Support of

Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District’s Motion for

Temporary Restraining Order (“Boardman Decl.”), ¶¶ 10-14. The water loss could double if

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FWS increases the regulation and requires Reclamation and DWR to operate to the most

restrictive OMR flows (-1,250 cfs). Boardman Decl., ¶ 13. The consequences of the water

shortfall will be catastrophic. Because of the resulting irreparable harm, as well as San Luis

Plaintiffs’ showing regarding the invalidity of the BiOp, and its adoption, a TRO should issue

immediately enjoining the implementation of Action 2 in its entirety.2

II. BACKGROUND FACTS

On February 2, 2010, San Luis Plaintiffs, as joined by other Plaintiffs, sought a TRO to

prevent the implementation of RPA Component 1 (Actions 1 and 2). At that time, the Court

denied the motion without prejudice because neither Action under that Component had been

triggered. Doc. 555, “Order Denying, Without Prejudice Application for Temporary Restraining

Order.” The Court advised that it would entertain the motion, on shorted notice if necessary, if

the RPA Component triggered. Hrg. Tr., at 30:15-19. Such is the case now.

A. RPA Component 1.

The claimed objective of Component 1 (Protection of the Adult Delta Smelt Life Stage)

“is to reduce entrainment of pre-spawning adult delta smelt during December to March by

controlling [Old and Middle River (“OMR”)] flows during vulnerable periods.” AR at 000295

(BiOp at 280). Under RPA Component 1, FWS makes the final determinations on OMR flows

based on recommendations from the Smelt Working Group (“SWG”). AR 000045, 000295-

000297, 000344, 000367 (BiOp at 30, 280-82, 329, 352). RPA Component 1 consists of two

Actions (Action 1 and Action 2). On February 8, 2010, FWS notified Reclamation and DWR

that Action 2 would begin to control operation of the CVP and SWP as of February 10, 2010.

Federal Defendants’ Notice of Implementation of RPA Component 1, Action 2 (Doc. 558), p. 1.

2 San Luis Plaintiffs’ PI Motion was fully briefed by January 12, 2010. See Doc. 447, PI Motion, Doc. 469, “Federal Defendants’ Opposition to [San Luis Plaintiffs’ PI Motion]” (“Federal Opposition”), Doc. 473 “Defendant-Intervenors’ Opposition to [San Luis Plaintiffs’ PI Motion]” (“Def-Int. Opposition”), Doc. 491 “[San Luis Plaintiffs’] Reply to Oppositions to [San Luis Plaintiffs’ PI Motion].” Joinders in support of San Luis Plaintiffs’ PI Motion, including their Reply papers, were also filed by January 12, 2010. San Luis Plaintiffs incorporate herein the factual background and all legal arguments they made in support of their pending PI Motion, including arguments made in their reply, as well all documents supporting the PI Motion filed by San Luis Plaintiffs and the other Plaintiffs.

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FWS will continue to monitor salvage by the CVP and SWP. Id., Exhibit 1. If expanded salvage

exceeds four (4) smelt per day (actual salvage is greater than 1), negative OMR flows will be

further decreased by 1,000 cfs. Id. The increased restrictions will continue until (a) expanded

salvage is less than or equal to four (4) (actual salvage is less than or equal to 1), (b) OMR flows

average no more negative than 1,250 cfs, or (c) the Smelt Working Group makes an alternative

recommendation. Id.

Action 2 will remain in effect until delta smelt spawning begins, which according to the

BiOp typically occurs in about March. AR 000296-000297, 000344 (BiOp at 281-82, 352). See

also AR at 000235 (BiOp at 220). The onset of spawning is deemed to occur when Delta water

temperatures reach 12°C (based on a 3-station average of daily average water temperature at

Mossdale, Antioch, and Rio Vista) or when a spent female delta smelt is detected in the trawls or

at the CVP or SWP facilities. Id. CVP and SWP operations are then governed by Component 2

(also known as Action 3), under which FWS sets flows within the -1,250 to -5,000 cfs range.

AR at 000297 (BiOp at 282).

B. Irreparable Harm Will Occur As A Result Of Action 2’s Implementation.

1. Water Losses Attributable to Action 2.

To maintain OMR flows no more negative than -4,000 cfs, Reclamation will likely have

to limit the Jones Pumping Plant to approximately 2,250 cfs throughout the period Action 2 is in

effect. Boardman Decl., ¶ 11. Given existing hydrologic conditions in the San Francisco

Bay/Sacramento-San Joaquin River Delta, water storage in CVP reservoirs, and an assumed

future hydrology that likely results in an underestimation of impacts, if Action 2 were enjoined,

Reclamation would likely be able to operate the Jones Pumping Plant to pump at a rate of

approximately 3,700 cfs during the period Action 2 were otherwise in effect. Boardman Decl., ¶

11. Thus, if Action 2 is allowed to control Reclamation’s operations, Reclamation will lose

approximately 1,450 cfs of pumping ability (3,700 cfs minus 2,250 cfs) during each day Action 2

remains in effect. Boardman Decl., ¶ 11. That loss of pumping amounts to approximately 2,900

acre-feet of water per day or approximately 115,000 acre-feet of water over the period Action 2

controls Reclamation’s operation of the Jones Pumping Plant. Boardman Decl., ¶ 11. If

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hydrologic conditions are “wetter” than the conditions in the conservative assumptions

underlying the above estimates (the “Assumed Hydrology”), the overall water loss at a -4,000 cfs

OMR restriction could increase to approximately 160,000 acre-feet. Boardman Decl., ¶ 12.

These loss estimates, however, would increase even further if FWS decides to require

Reclamation and DWR to operate to a more restrictive OMR flow level. Boardman Decl., ¶ 13.

For example, if FWS decides to require Reclamation and DWR to operate to an OMR flow of -

1,250 cfs, the water supply impacts described above could double. Boardman Decl., ¶ 13.

2. Action 2’s Effects On Water Supply.

San Luis Reservoir is located west of the city of Los Banos and is part of the San Luis

Joint-Use Complex, which serves the CVP and SWP. Boardman Decl., ¶ 15. San Luis

Reservoir is an “offstream reservoir,” meaning it has little natural runoff. Boardman Decl., ¶ 15.

Water supply available in San Luis Reservoir is pumped from the Delta at the Jones Pumping

Plant or the Banks Pumping Plant in the fall, winter, and spring months – when demands are low

and surplus water is available. Boardman Decl., ¶ 15. During the irrigation season, water

demands from the Authority’s member agencies far exceed the capacity of the Jones Pumping

Plant. Boardman Decl., ¶ 16. Reclamation attempts to meet the demands of the Authority’s

member agencies through direct diversions at the Jones Pumping Plant and through releases of

water stored in San Luis Reservoir that was previously pumped at the Jones Pumping Plant.

Boardman Decl., ¶ 16.

Were Action 2 not in effect, Reclamation would pump available water into San Luis

Reservoir and make that water available during the irrigation season to meet demands.

Boardman Decl., ¶ 17. The available water is un-stored, surface runoff flowing into the

tributaries below Dams and into the Delta because of storm events. Boardman Decl., ¶ 17.

Reclamation and DWR could not store that water and convey it later in the year to areas south of

the Delta. Boardman Decl., ¶ 17. If not pumped, the water will simply flow into the ocean.

Boardman Decl., ¶ 17.

Thus, water lost due to implementation of Action 2 will reduce by approximately the

same amount the quantity of water Reclamation would have available during the irrigation

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season for delivery to the Authority’s member agencies. Boardman Decl., ¶ 26. San Luis

Plaintiffs cannot recover the water lost during implementation of Action 2. Boardman Decl., ¶

17. Therefore, unless enjoined, during the period it remains in effect, Action 2’s adverse effects

on the water supply of the Authority’s member agencies will likely total an 115,000 acre-feet to

160,000 acre-feet. Boardman Decl., ¶¶ 1-17. The adverse effect could double if FWS imposes

the most restrictive OMR flows on Reclamation and DWR. Boardman Decl., ¶ 13.

3. Action 2’s Impact On The San Joaquin Valley’s West Side.

Water supply constraints are having dire consequences on the San Joaquin Valley’s west

side. Farmers are losing their businesses and livelihood, people are losing their jobs, hunger is

skyrocketing, and the environment is suffering. As reported in San Luis Plaintiffs’ PI Motion: [W]ater supply constraints compelled Westlands farmers to pump up to 550,000 acre-feet of groundwater in 2009 – an approximately 75% increase since 2007, and nearly three times the limit that creates an overdraft situation. Freeman Decl., [Doc. 438,] ¶ 6. Even with increased groundwater pumping, farmers still fallowed upwards of 250,000 acres this irrigation year alone. Freeman Decl., [Doc. 438,] ¶ 5. Further, because groundwater pumping is no cure all anyway, water supply issues are dictating that preferred or historic crops be replaced by those that are less water reliant. Freeman Decl., [Doc. 438,] ¶¶ 5, 18; Allen Decl., [Doc. 440,] ¶¶ 3, 4, 6; Del Bosque Decl., [Doc. 442,] ¶¶ 5, 6; Hurd Decl., [Doc. 439,] ¶ 5. But despite defensive planting measures, replacement crops are still water starved and can fail to produce meaningful harvests Allen Decl., [Doc. 440,] ¶ 4. Moreover, farmers are learning that the stability of their water supply is becoming the paramount factor considered by their lenders. Allen Decl., [Doc. 440,] ¶ 5; Del Bosque Decl., [Doc. 442,] ¶ 13; Hurd Decl., [Doc. 439,] ¶ 7. General creditworthiness is no longer the standard. Job losses continue to rise (Del Bosque Decl., [Doc. 442,] ¶ 11; Hurd Decl., [Doc. 439,] ¶ 8), causing tremendous spikes in demand for food for survival. Del Bosque Decl., [Doc. 442,] ¶ 11; Hurd Decl., [Doc. 439,] ¶ 8; Wilkie Decl., [Doc. 441,] passim.

Doc. 447, PI Motion Brief at pp. 4-5. These threats of irreparable harm are actual, not

conjectural; moreover, they are imminent – these harms are poised to wreak their permanent

havoc upon implementation of RPA Action 2, unless enjoined. In fact, it is expected that

Reclamation’s 2010 initial allocation to Westlands will be zero percent of Westlands’ contract

supply, and Westlands is unlikely to receive any final allocation until May or June of 2010.

Declaration of Russ Freeman in Support of Plaintiffs San Luis & Delta-Mendota Water

/ / /

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Authority and Westlands Water District’s Motion for Temporary Restraining Order, (Doc. 541, ¶

3.

III. LEGAL ARGUMENT

A A TRO Is Necessary And Proper To Preserve The Status Quo Pending Disposition Of San Luis Plaintiffs’ PI Motion.

The San Luis Plaintiffs seek a TRO that will remain in effect until their motion for

preliminary injunction may be heard. San Luis Plaintiffs seek a TRO pursuant to the Federal

Rules of Civil Procedure and all applicable local rules. Fed. R. Civ. P. 65(b); Local Rule 65-231.

This Court recently set forth the standards of decision in its Salmonid TRO, which are

incorporated herein by this reference. Salmon TRO, 4:2-9:9. As this Court explained, the legal

standard for whether or not to issue a TRO parallels that for a preliminary injunction. Id., p. 4:9-

14. That is, the requested relief is granted when the plaintiffs show: a likelihood of success on

the merits; a likelihood of irreparable harm; that the balance of equities tip in San Luis Plaintiffs’

favor; and that an injunction is in the public interest. Id., p. 4:15-26. Further, “[t]he District

Court may consider a wide range of evidence of harm in a NEPA injunction proceeding.” Id., p.

14:3-4. As demonstrated here and in the moving and reply papers supporting San Luis Plaintiffs’

PI Motion and previously filed TRO Motion, all of which are incorporated herein by reference,

San Luis Plaintiffs make the showing necessary to obtain the TRO.

B. A TRO Should Issue Based on Reclamation’s NEPA Violation.

As a result of the Court’s decision that Reclamation violated NEPA, Reclamation’s

implementation of RPA Action 2 should be enjoined. Because it is the undertaking of an action

without adequate prior analysis that violates NEPA, when challenged, an unlawful action cannot

be allowed to stand:

[W]hen an agency has taken action without observance of the procedure required by law, that action will be set aside.

San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al., No. 1:09-cv-00407-OWW-

DLB (E.D. Cal.), Mem. Decision re Cross-Motions for Summary Judgment on NEPA Issues,

Doc. 399, at p.14, citing High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 640 (9th Cir.

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2004) (“High Sierra”). Setting aside Reclamation’s offending action is entirely consistent with

the Administrative Procedure Act, under which NEPA violations are prosecuted. See, e.g., 5

U.S.C. § 706(2)(A) (under the APA, a reviewing court “shall . . . hold unlawful and set aside

agency action”).

In accordance with this principle, a proper remedy upon setting aside a non-NEPA-

compliant action is to reinstate the last NEPA-compliant one. A district court’s decision to do so

was recently reviewed and approved by the Ninth Circuit in Cal. ex rel. Lockyer v. United States

Dep't of Agric., 2009 U.S. App. LEXIS 19219. In Lockyer, upon setting aside an action that

failed to comply with NEPA, the district court ordered a return to the last NEPA-compliant

regime in effect even over the objections of the United States Department of Agriculture

(“USDA”). The USDA argued that the district court should implement the status quo

immediately preceding the challenged action if it were to invalidate the newly proposed regime.

The district court rejected the argument in favor of returning to the prior NEPA-compliant

regime in place. The Ninth Circuit affirmed, holding:

In Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005), we indicated that “[t]he effect of invalidating an agency rule is to reinstate the rule previously in force.” See also Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562 (9th Cir. 2006) (applying Paulsen in the context of Federal Land Policy and Management Act and National Environmental Policy Act challenges).

Id.3 Lockyer instructs that reinstating a previous NEPA-compliant action is an entirely proper

remedy when a non-compliant one is set aside.

Applying this principle here results in reverting back to the regime under the 1995

biological opinion issued by FWS concerning continued operation of the CVP and SWP and

their effects on the delta smelt. Reclamation implemented that biological opinion, and the CVP

and SWP operated in accordance with that biological opinion for approximately 10 years. San 3 In Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, the Ninth Circuit overruled a district court’s decision finding the Bureau of Land Management’s (“BLM”) amendments to a forest management plan were lawful. Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 at 562. The Ninth Circuit reinstated the last NEPA-compliant regulations stating “Because the 2001 and 2003 ASR Decisions are invalid and must be set aside, 5 U.S.C. § 706(2)(A), the Survey and Manage designations under the 2001 ROD are reinstated. See, Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (‘The effect of invalidating an agency rule is to reinstate the rule previously in force’).”

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Luis Plaintiffs are aware of no NEPA challenges made against that biological opinion, or its

implementation.

Given the appropriateness of such a result, San Luis Plaintiffs’ requested TRO is even

more appropriate when the requested relief is for a limited duration, the harm to these plaintiffs

is extraordinary and irreparable, and the threat to the delta smelt population by enjoining RPA

Action 2 is minimal. Again as recognized by the Court in the Salmonid TRO: If Reclamation had provided the required NEPA analysis, it could have analyzed and evaluated not only the protection of the species and their habitat, but whether less harmful, protective, reasonable and prudent alternatives could have been adopted that also protect humans and the human environment. No consideration was given to measures that were not more protective than necessary and which would have afforded additional water supply to water districts, water users and communities affected by continuing drought conditions and water shortages.

Salmonid TRO, 20:7-18. San Luis Plaintiffs should not be required to continue to suffer the

extreme consequences flowing from, and bear the brunt of, this fundamental failure to consider

whether the RPA, including Action 2, is overly restrictive. Based on the NEPA violation alone,

Action 2 thus should be temporarily enjoined, pending the Court’s decision on San Luis

Plaintiffs’ pending PI Motion.

C. San Luis Plaintiffs Are Likely To Succeed On The Merits Of Their ESA Claims.

While the NEPA violation alone is sufficient to enjoin Action 2, there is still more

support for the requested TRO. Specifically, Plaintiffs also are likely to succeed on the merits of

their ESA claims, for example, while not exhaustive of all its failings, the BiOp violates the ESA

because it incorrectly describes the environmental baseline and improperly analyzes the effects

of continued operation of the CVP/SWP on the delta smelt and its critical habitat. See Doc. 447,

PI Motion Brief at pp. 12-26. The BiOP also violates the ESA because Components 1 and 2 of

the BiOp’s RPA are underpinned by an arbitrary and capricious effects analysis, are not

supported by the best available science, and are not justified as necessary to the survival and

recovery of delta smelt. Id. at pp. 26-34. The BiOP further violates the ESA because the BiOp’s

incidental take limit was based upon the arbitrary and capricious inclusion and exclusion of

relevant data. Id. at pp. 34-38. Although those failings are described in greater length in San

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Luis Plaintiffs’ pending PI Motion, two specific examples of the BiOp’s ESA violations are

provided here.

1. Action 2 Is Unlawful Because FWS Has Failed To Show That Limiting Entrainment Is Necessary To Avoid Jeopardy.

Action 2 is triggered based on entrainment concerns. AR at 000295-97, 000344-000345

(BiOp at 280-82, 329-30). But that trigger is inappropriate because of its relationship to a larger

failing of the BiOp – the lack of justification for Action 2’s pumping restrictions at all.

For example, RPA Action 2 is based on the BiOp’s “calculations of the relationship

between OMR flows and adult salvage . . . [as] depicted in Figure B-13” of the BiOp.

Declaration of Dr. Richard B. Deriso (“Deriso Decl.”), Doc. 396, at ¶ 27; AR at 000363 (BiOp at

348). Figure B-13, however, is based upon raw salvage (i.e., how many individual smelt were

salvaged) and therefore fails to provide any information on “represent the proportion of the total

population that is lost to salvage,” which means “Figure B-13 does not show what effect OMR

flows have on the total delta smelt population.” Id., at ¶¶ 27-28 (emphasis added).4 This is

critical because “[o]nly by looking at population level effects can it be determined whether

salvage is impacting the delta smelt population and its ability to recover.” Id., at ¶ 69.

Defendants agree. Elsewhere in the BiOp, FWS concedes that, for purposes of “relating salvage

data to population-level significance,” the “total number salvaged at the facilities does not

necessarily indicate a negative impact upon the overall delta smelt population.” AR at 000353

(BiOp at 338). And, again, the actual survey data demonstrates the accuracy of this concession.

Specifically, the most recent data shows that the majority of the smelt are in the Northern and

Western reaches of the Delta, far removed from any risk of entrainment. Exhibits 1-A and 1-B

to RJN. Notwithstanding this, the BiOp fails to correlate its prescribed RPA to any population-

level effects analysis regarding the delta smelt. As a result, FWS totally disregarded its primary

responsibility under ESA section 7, by failing to explain how Action 2 is essential to avoid 4 Nor does Figure B-13 take into consideration the effect of relative abundance from year to year on raw salvage numbers (i.e., that in years of higher abundance, one might expect higher entrainment figures). Preliminary Injunction Motion Brief at pp. 39-40; Deriso Decl., Doc. 396, at ¶¶ 62-63.

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jeopardy. By doing so, FWS acted arbitrarily, capriciously, and in disregard of the law, and

Action 2’s entrainment trigger is similarly arbitrary and capricious.

2. The Severe OMR Restrictions In RPA Action 2 Are Unsupported By The Data In The BiOp.

As imposed, Action 2 currently limits OMR flows to no more negative than -4,000 cfs.

Federal Defendants’ Notice of Implementation of RPA Component 1, Action 2 (Doc. 558), p. 1.

If just 6 more smelt are salvaged by the CVP and SWP, FWS may increase the regulation to -

1,250 cfs simply because 6 more delta smelt are salvaged by the CVP and SWP. Id., Exhibit 1.

Again, the supposed premise Action 2’s OMR restrictions is to reduce the risk of entrainment.

Although Defendants claim that the BiOp’s Figure B-13 shows -5,000 cfs to be the point

at which the delta smelt salvage curve increased (AR at 000362-64 (BiOp at 347-349)), Figure

B-13 “uses salvage weighted OMR flows, which are not listed anywhere in the BiOp” (Deriso

Decl., Doc. 396, at ¶ 62). Plotting the cumulative salvage index data provided in the BiOp (see,

e.g., AR at 000401 (BiOp at 386)) against OMR flows reveals “that salvage rate remains flat as

OMR flows increase until OMR flows reach -6,100 to -7,000 cubic feet per second (‘cfs’). At -

7,000 cfs, salvage rate begins to increase as negative OMR flows increase. The graph

demonstrates that OMR flows do not correlate to the salvage rate at flows less negative than -

6,100 cfs at the very least.” Deriso Decl., at ¶ 63. In other words, “there is no scientific basis for

FWS’s imposition of OMR flow restrictions at flows less negative than -6,100 cfs (and

potentially -7,000 cfs).” Id. Similarly, certain other figures in the BiOp suggest that appreciable

spikes in delta smelt entrainment do not occur until OMR flows approach or exceed -10,000 cfs.

AR at 000348 (BiOp at 333). Thus Action 2’s pumping restrictions are unsupported – and

contradicted – by the available data and the BiOp itself.

D. The Delta Smelt Are Not Located Near The CVP And SWP Pumping Facilities, The Level Of Take Is Well Within The BiOp’s Limits And Significantly Less Than The Amount Caught And Likely Taken By The California Department Of Fish And Game When Undertaking The Kodiak Trawl Survey.

The absurdity of the circumstance before this Court is demonstrated by the most recent

survey data and the limited take that has occurred. The most recent Kodiak Trawl survey data

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collected by the California Department of Fish and Game show in Delta Smelt Distribution Maps

that the majority of delta smelt are in the Western and Northern Delta, far from the CVP and

SWP pumping facilities and the risk of entrainment. Exhibits 1-A and 1-B to the RJN.

Further, the level of take by the CVP and SWP that has occurred as of February 9, 2010

and without any regulation under the BiOp, is within the level of take authorized in the BiOp.

Federal Defendants’ Notice of Implementation of RPA Component 1, Action 2 (Doc. 558),

Exhibit 1, p. 1; Exhibit 2-A to 2-C to RJN. And, the level of take by the CVP and SWP is

substantially less than the level of take likely caused by the California Department of Fish and

Game. In January 2010, the California Department of Fish and Game, through its Kodiak Trawl

Survey, has caught and likely taken at least 313 adult delta smelt. Exhibits 1-A and 1-B to RJN.

See also AR at 160, BiOp at p. 145 (acknowledging that “delta smelt often do not survive the

salvage process”). That is more than 50 times the amount of actual take by the CVP and SWP.

Notwithstanding those data, the BiOp would require restricted pumping, with water flowing to

the ocean while farmers on the Westside of the San Joaquin Valley are facing significant and

imminent harm.

E. Implementation of Action 2 Is Likely To Result in Irreparable Harm To San Luis Plaintiffs their Water Use.

Water supply constraints like those imposed by the BiOp compel significant groundwater

pumping, beyond the limits that create overdraft situations (Doc. 447, PI Motion Brief at pp. 4-

5); lead to the significant land fallowing, approximately 250,000 acres in 2009 (id. at p. 5);

dictate changes in historic planting (id.); lead to failed harvests (id.); deprive access to capital

(id.); and fuel job losses and demand for food for survival (id.). These harms are likely to

continue because of the dramatic effects Action 2 will have on the water supply: approximately

115,000 acre-feet to 160,000 acre-feet of water lost over the period Action 2 controls

Reclamation’s operation of the Jones Pumping Plant, losses that could double if FWS increase

the level of regulation. Boardman Decl., ¶¶ 10-14. These losses will be real and permanent.

Boardman Decl., ¶¶ 1-17, including ¶¶ 10-17.

/ / /

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F. The Balance Of Equities And Public Interest Weigh In Favor Of The TRO.

Again, as this Court has found in the Salmonid TRO, under NEPA, the balance of

equities and the public interest tips in favor of San Luis Plaintiffs. For the reasons set forth

above, the result is the same here.

Additionally, although Congress has, through enactment of the ESA, determined that

preservation of threatened species such as the delta smelt is in the public interest, Congress did

not intend the ESA to be “implemented haphazardly, on the basis of speculation or surmise.”

Bennett v. Spear, 520 U.S. 154, 176 (1997); Doc. 447, PI Motion Brief at pp. 38-39. In fact, the

ESA’s stringent requirements regarding biological opinions are for the benefit of the regulated

community as well as listed species: While [the ESA’s “best science” requirement] no doubt serves to advance the ESA’s overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.

Bennett, 520 U.S. at 177. As indicated above, implementation of Action 2 and the resultant

curtailment of CVP water will cause or contribute to a host of woes in the San Joaquin Valley’s

west side including subsidence, land fallowing, air quality impacts, livelihood and job losses,

community and deterioration, and increased hunger. Sec. II.B.3, supra. The destruction of the

socioeconomic fabric of the west side of the San Joaquin Valley is unjustified, however, because

the evidence in the BiOp and its administrative record reveal the BiOp to be arbitrary, illegal,

and unsupported by the science required under the ESA, and in reality, is based on speculation

and surmise. Doc. 447, PI Motion Brief at pp. 38-39.

G. A TRO Until Resolution Of San Luis Plaintiffs’ PI Motion Is Necessary And Proper.

Under the circumstances presented, the duration of the requested TRO until disposition of

San Luis Plaintiffs’ PI Motion is necessary and appropriate. First, it is undisputable that a TRO’s

purpose is to maintain the status quo and prevent irreparable harm until the merits of the dispute

in question can be considered. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck

Drivers, 415 U.S. at 439 (1974). As actual events have unfolded here, the TRO is necessary

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because Action 2 has been triggered during the continuance of the hearing on San Luis Plaintiffs’

already-filed PI Motion. San Luis Plaintiffs’ request for a TRO until their pending PI Motion

can be ruled upon is therefore entirely consistent with a TRO’s purpose – status quo preservation

and irreparable harm prevention.

Second, Rule 65(b)’s reference to a TRO’s duration is limited to TROs issued without

notice. As specified in Rule 65: Every temporary restraining order issued without notice must . . . be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry – not to exceed 14 days – that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.

Fed. R. Civ. P. 65(b)(2) (emphasis added). The omission of a similar express limitation for

TROs with notice cannot be deemed an oversight. After all: “[B]road discretion is given to the district court to manage the timing and process for entry of all interlocutory injunctions – both TROs and preliminary injunctions – so long as the opposing party is given a reasonable opportunity, commensurate with the scarcity of time under the circumstances, to prepare a defense and advance reasons why the injunction should not issue.”

CIENA Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000). Here, Defendants have had

abundant notice of San Luis Plaintiffs’ proposed TRO – not only were Defendants actually given

notice of San Luis Plaintiffs’ renewed right to seek this temporary relief, but San Luis Plaintiffs’

earlier filed Motion for TRO and related PI Motion are fully briefed.

Finally, several cases acknowledge the propriety of a TRO that lasts beyond any

limitation described in Rule 65(b). At least one district court held that a TRO’s initial period

(formerly 10 days) could be doubled outright pending hearing on a preliminary injunction

motion in that time period. See, e.g., Horn Abbot Ltd. v. Sarsaparilla Ltd., 601 F.Supp. 360, 368,

n 12 (N.D. IL 1984). Similarly, when Rule 65(b)’s 10-day rule was in effect, the Court of

Appeal in a different circuit held a TRO for an initial period of at least 28 days “barely extends

beyond 20 days” referenced in Rule 65(b) and, therefore, does not transform the TRO into

appealable temporary injunction. Connell v. Dulien Steel Products, Inc., 240 F.2d 414, 417-418

(5th Cir. 1957). Furthermore, the Court of Appeal in yet a different circuit would recognize this

Court’s ability to continue a TRO even pending its decision on San Luis Plaintiffs’ PI Motion.

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SEC v. Unifund Sal, 910 F.2d 1028, 1034 (2d Cir. 1990) (“[N]othing in rule 65 of the Federal

Rules of Civil Procedure prevents a district court from continuing a TRO while reserving

decision on a motion for a preliminary injunction”). Thus, adequate case authority exists for this

Court to issue a TRO that “exceeds” the time limits referenced in Rule 65(b).

IV. CONCLUSION

The San Luis Plaintiffs have already succeeded on the merits of their NEPA claim. As

recognized by the Court in granting the temporary restraining order in the Consolidated

Salmonid Cases, to prevent the irreparable harm that will occur from the invalid biological

opinion until such time as San Luis Plaintiffs’ PI Motion can be heard, a temporary restraining

order enjoining implementation of Action 1 thus is necessary and proper. Additionally, the

temporary restraining order is appropriate because San Luis Plaintiffs are likely to succeed on the

merits of their ESA claim. Accordingly, for all of the reasons stated herein, and in San Luis

Plaintiffs’ previously filed TRO and PI Motion papers, San Luis Plaintiffs respectfully request

that this Court issue a temporary restraining order, enjoining the implementation of RPA Action

1 in its entirety, to remain effective until disposition of San Luis Plaintiffs’ pending PI Motion. Dated: February 9, 2010 KRONICK, MOSKOVITZ, TIEDEMANN &




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{00217352; 1} DECLARATION OF DANIEL J. O’HANLON IN SUPPORT OF MOTION FOR TRO

DANIEL J. O’HANLON, State Bar No. 122380 K. ERIC ADAIR, State Bar No. 150650 HANSPETER WALTER, State Bar No. 244847 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor Sacramento, CA 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 EILEEN M. DIEPENBROCK, State Bar No. 119254 JON D. RUBIN, State Bar No. 196944 JONATHAN R. MARZ, State Bar No. 221188 DIEPENBROCK HARRISON 400 Capitol Mall, 18th Floor Sacramento, CA 95814 Telephone: (916) 492-5000 Facsimile: (916) 446-4535









CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA DECLARATION OF DANIEL J. O’HANLON IN SUPPORT OF PLAINTIFFS SAN LUIS & DELTA-MENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT’S MOTION FOR TEMPORARY RESTRAINING ORDER



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{00217352; 1} -1- DECLARATION OF DANIEL J. O’HANLON IN SUPPORT OF MOTION FOR TRO

I, Daniel J. O’Hanlon, declare as follows:

1. I am a shareholder at Kronick, Moskovitz, Tiedemann & Girard, counsel of

record for Plaintiffs San Luis & Delta-Mendota Water Authority (“Authority”) and Westlands

Water District (“District”) (collectively herein “San Luis Plaintiffs”). I am admitted to practice

before all the courts of the State of California and the United States District Court for the Eastern

District of California. I have personal knowledge of the facts stated in this declaration and if

sworn as a witness could and would competently testify thereto. This declaration is to confirm

notice as required by the Local Rules of Practice for the United States District Court, Eastern

District of California, L.R. 231.

2. At approximately 4:30 p.m. on February 8, 2010, I received a “Notice of

Electronic Filing” of Federal Defendants’ “Notice of Implementation of RPA Component 1,

Action 2.” Doc. 558. Approximately 90 minutes later, I notified all counsel by email of San

Luis Plaintiffs’ intention, in light of Federal Defendants’ Notice of Implementation, to seek a

temporary restraining order enjoining implementation of Action 2 of Component 1 of the

reasonable and prudent alternative of the December 2008 U.S. Fish and Wildlife Service

Biological Opinion on the Coordinated Operations of the Central Valley Project and State Water

Project. I further advised counsel that we would seek to have a hearing before Action 2 takes

effect, which Federal Defendants stated will occur at 5:00 p.m. on February 10, 2010. A true and

correct copy of that email is attached hereto as Exhibit 1.

I declare under penalty of perjury of the laws of the United States of America that the

foregoing is true and correct. Signed this 8th day of February, 2010, in Sacramento, California. /s/_[Daniel J. O’Hanlon]______________

DANIEL J. O’HANLON


{00014035; 1}

Exhibit 1


Jonathan R. Marz

From: O'Hanlon, Daniel [[email protected]]Sent: Monday, February 08, 2010 5:52 PMTo: [email protected]; [email protected]; [email protected]; [email protected];

[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Eileen M. Diepenbrock; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Jon D. Rubin; Jonathan R. Marz; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]

Cc: Adair, K. Eric; Walter, Hanspeter; Akroyd, Rebecca; [email protected]; [email protected]: Notice of Intention To Seek Temporary Restraining Order - SLDMWA v. Salazar, Case No. 1:09-cv-422 OWW DLB.

2/8/2010

To All Counsel In The Delta Smelt Cases This email is to advise you that plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District will be seeking a temporary restraining order against implementation of Action 2 of the reasonable and prudent alternative in the FWS biological opinion. The federal defendants provided notice today that Action 2 will take effect on February 10 after 5:00 pm. We intend to request that the court hold a hearing on the application before Action 2 takes effect. Dan O'Hanlon

The information contained in this E-mail is confidential and may also contain privileged attorney-client information or work product.The information is intended only for the use of the individual or entity to whom it is addressed. If you are not the intended recipient,or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any use, dissemination,distribution or copying of this communication is strictly prohibited. If you have received this E-mail in error, please delete thismessage from your computer and immediately notify the sender. Thank you.


mrj

Typewritten Text

mrj

Typewritten Text

mrj

Typewritten Text

Exhibit 1

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- 2 - DECLARATION OF DANIEL J. O’HANLON IN SUPPORT OF MOTION FOR TRO



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{00217221; 1} DECLARATION OF THOMAS BOARDMAN IN SUPPORT OF MOTION FOR TRO

DANIEL J. O’HANLON, State Bar No. 122380 K. ERIC ADAIR, State Bar No. 150650 HANSPETER WALTER, State Bar No. 244847 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor Sacramento, CA 95814 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 EILEEN M. DIEPENBROCK, State Bar No. 119254 JON D. RUBIN, State Bar No. 196944 JONATHAN R. MARZ, State Bar No. 221188 DIEPENBROCK HARRISON 400 Capitol Mall, 18th Floor Sacramento, CA 95814 Telephone: (916) 492-5000 Facsimile: (916) 446-4535









CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA DECLARATION OF THOMAS BOARDMAN IN SUPPORT OF PLAINTIFFS SAN LUIS & DELTA-MENDOTA WATER AUTHORITY AND WESTLANDS WATER MOTION FOR TEMPORARY RESTRAINING ORDER



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{00217221; 1} - 1 - DECLARATION OF THOMAS BOARDMAN IN SUPPORT OF MOTION FOR TRO

I, THOMAS BOARDMAN, declare as follows:

1. I am an adult over the age of eighteen. I have personal knowledge of all of the

facts contained in this declaration, except those stated on information and belief. As to those

statements based on information and belief, I believe them to be true. If called to testify, I would

and could completely and truthfully testify as to the statements contained herein.

2. I am employed by the San Luis & Delta-Mendota Water Authority (“Authority”) as

a Water Resources Engineer. I received a Bachelors of Science in Civil Engineering from

California State University, Fresno, in 1984. From 1989 to 1997, I worked for the Westlands

Water District (“Westlands”) as an engineer. I joined the Authority in my current position in

1997. Among my duties as a Water Resources Engineer is projecting the availability of Central

Valley Project (“CVP”) water supplies for delivery to members of the Authority. I have gained

extensive experience modeling short and long-term water supply impacts resulting from

alternative operations of the CVP. I am also very familiar with the operations of the State Water

Project (“SWP”) which are coordinated with the operations of the CVP. In the course of my

employment by the Authority, I regularly review the ongoing and planned operations of the CVP

and SWP, and regularly participate in meetings and conference calls with staff from the Bureau of

Reclamation (“Reclamation”) and the Department of Water Resources (“DWR”) regarding

planned CVP and SWP operations. As a result of my training and experience, I am familiar with

operations and facilities of the CVP and SWP, including the physical and regulatory constraints

on CVP and SWP operations that affect the ability to provide water supplies to members of the

Authority.

The 2008 Smelt BiOp RPA

3. In the course of my duties, I reviewed the December 15, 2008, biological opinion

issued by the United States Fish and Wildlife Service (“FWS”) regarding the effect of continued

operations of the CVP and SWP on the delta smelt and its critical habitat (“2008 Smelt BiOp”).

The reasonable and prudent alternative (“RPA”) in the 2008 Smelt BiOp is divided into five

components. This declaration focuses on the second “Action” of the first component.

4. RPA Component 1 imposes limitations on negative or “reverse” flows in Old and


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Middle Rivers (“OMR”) that may begin on or after December 1 through about March each year.

RPA Component 1 is supposedly designed to reduce risk of entrainment of adult delta smelt. It

consists of two “Actions.”

5. If Action 1 is triggered, Action 2 of RPA Component 1 commences immediately

after Action 1 ends. If Action 1 is not triggered, FWS may “recommend” a start date for Action 2,

which is what FWS did in 2009. Under Action 2, the FWS will set OMR flows between -1,250

cfs and -5,000 cfs. FWS sets the allowable flows within the range based on the recommendations

of the Smelt Working Group. Action 2 remains in effect until delta smelt spawning begins, which

according to the BiOp, typically occurs in about March. The onset of spawning is deemed to

occur when Delta water temperatures reach 12°C (based on a three-station average of daily

average water temperature at Mossdale, Antioch, and Rio Vista) or when a spent female Delta

smelt is detected in the trawls or at the CVP or SWP facilities.

6. To estimate how Reclamation might operate the CVP under Action 2, I assumed

that the magnitude of flows in the Sacramento and San Joaquin Rivers that occurred from the end

of January through mid-March 2008 (roughly a six-week period), would be similar in 2010,

during the period Action 2 (and Action 1) controls CVP and SWP operations. I made that

assumption because the runoff into the Sacramento and San Joaquin Rivers that resulted from the

late-January 2008 storm activities is similar to the runoff into the Sacramento and San Joaquin

Rivers that resulted from the storms that just occurred in late-January/early-February 2010.

Because the inflow to the delta from the Sacramento River during February and March of 2008

was the eighth lowest during the past 30 years, I believe that by assuming a repeat of the February

and March 2008 conditions during February and March 2010, I will have underestimated the

actual impacts to CVP operations. Further, my estimates of water supply impacts from Action 2

assume Action 2 will terminate in mid-March. Therefore, if Action 2 continues past mid-March,

there will likely be greater water supply impacts than I estimate below. For the purposes of this

declaration, I refer to these hydrologic assumptions as the “Assumed Hydrology.”

The 2009 Salmonid BiOp RPA

7. In the course of my duties, I also reviewed the June 4, 2009, biological opinion


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issued by the National Marine Fisheries Service (“NMFS”) regarding the effect of continued

operations of the CVP and SWP on winter-run Chinook salmon, spring-run Chinook salmon,

Central Valley steelhead, Central California Coast steelhead, Southern Distinct Population

Segment of North American green sturgeon, and Southern Resident killer whales (“2009

Salmonid BiOp”). The RPA in the 2009 Salmonid BiOp, is divided into many components. In

this declaration I consider only one component: Action IV.2.3, which involves OMR Flow

Management. See 2009 Salmonid BiOp, p. 648.

8. Action IV.2.3 remains in effect from January 1 through June 15, or until the

average daily water temperature at Mossdale is greater than 72°F (22°C) for one week, whichever

occurs first. Under Action IV.2.3, Reclamation and DWR must operate the CVP and SWP,

respectively, to limit negative or “reverse” flows to -5,000 cfs in OMR. The NMFS can increase

that regulation by requiring Reclamation and DWR to operate the CVP and SWP, respectively, to

limit negative flows up to -2,500 cfs in OMR, if the “level of concern” increases. The NMFS

level of concern increases as the take of salmon per volume of water pumped increases. The five-

day running average flow cannot be more than 25 percent more negative than the targeted

requirement flow.

9. It is my understanding that on February 5, 2010, this Court temporarily restrained

implementation of Action IV.2.3 from February 5, 2010, through February 19, 2010, unless

extended or terminated earlier in accordance with the Court’s instructions. This declaration takes

into consideration the effects of that temporary restraining order (“Salmonid TRO”).

Once Implemented, Action 2 Of RPA Component 1 Will Impair CVP Operations And CVP Water Supply

10. It is my understanding that, on February 8, 2010, FWS triggered Action 2 and,

pursuant to a Court order in this case, gave Reclamation 48 hours’ notice that Reclamation and

DWR must begin operating the CVP and SWP, respectively, by February 10, 2010, to maintain

OMR flows to no more negative than -4,000 cfs. Therefore, for purposes of this declaration, I

assume Action 2 will commence on February 10, 2010, and that OMR flows will at that time be

limited to no more negative than -4,000 as ordered by FWS. Action 2 will remain in effect until


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there is evidence of spawning, at which time RPA Component 2 (also known as Action 3) will

commence. Because it is triggered by evidence of spawning, the precise date when RPA

Component 2 will trigger in unknown, but according to the BiOp, spawning generally begins

around the end of March. Therefore, for purposes of this declaration, I assume Action 2 will

remain in effect for approximately 40 days.

11. Under the Assumed Hydrology, Reclamation will likely have to limit the Jones

Pumping Plant to pump, on average, approximately 2,250 cfs to maintain OMR flows at no more

negative than -4,000 cfs. If Action 2 were enjoined, under the Assumed Hydrology, Reclamation

will likely be able to operate the Jones Pumping Plant to pump at a rate of approximately 3,700

cfs. Therefore, for each day Action 2 remains in effect with the -4,000 cfs OMR flow restrictions

in place, there will be a loss of approximately 1,450 cfs (3,700 cfs minus 2,250 cfs) of pumping

ability by the CVP. That loss of pumping ability by the CVP amounts to approximately 2,900

acre-feet of water per day, or approximately 115,000 acre-feet of water over the approximately

40 days I have assumed Action 2 will remain in effect.

12. The above estimates are conservative because the Assumed Hydrology is based

upon hydrologically “dry” conditions. If conditions during the time Action 2 is in effect are

“wetter” than the conditions in the Assumed Hydrology, the above estimates will have understated

the impacts of Action 2. For example, if conditions are wetter than the Assumed Hydrology,

Reclamation will likely be able to operate the Jones Pumping Plant to pump at a rate of

approximately 4,250 cfs. Under such conditions, for each day Action 2 remains in effect with the

-4,000 cfs OMR flow restrictions in place, Action 2 will result in a loss of approximately 2,000

cfs (4,250 cfs minus 2,250 cfs) of pumping ability by the CVP. That loss of pumping ability by

the CVP amounts to approximately 4,000 acre-feet of water per day, or approximately 160,000

acre-feet of water over the approximately 40 days I have assumed Action 2 will remain in effect.

13. I recognize that if FWS revises its OMR flow restrictions while Action 2 is in

effect, the water losses described in this declaration could be more or less than the 115,000 to

160,000 acre-feet described in paragraphs 11 and 12, above, depending on where within the range

of -1,250 cfs to -5,000 cfs FWS sets OMR flow limits. For illustration purposes, under the


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Assumed Hydrology, if FWS sets OMR at most restrictive levels, Reclamation will likely have to

limit the Jones Pumping Plant to pump, on average, approximately 1,050 cfs to maintain OMR

flows to no more negative than -1,250 cfs. At that level of restriction, Reclamation would realize

almost twice as much of an impact as I estimated in paragraph 11, above.

14. I do recognize that if Action 2 is enjoined but the Salmon TRO is lifted or not

extended beyond February 19, 2010, meaning Reclamation would be limited by Action IV.2.3 of

the 2009 Salmonid BiOp, the amount of water Reclamation and the Authority’s member agencies

would lose solely because of Action 2 could be less than 115,000 to 160,000 acre-feet described

in paragraphs 11 and 12, above. The impact would nonetheless be significant.

The Adverse Impacts Of Action 2 of RPA Component 1 Will Impair Reclamation’s Ability To Deliver Water To The Authority’s Member Agencies

15. San Luis Reservoir is located west of the city of Los Banos and is part of the San

Luis Joint-Use Complex, which serves the CVP and SWP. San Luis Reservoir is an “offstream

reservoir,” meaning it has little natural runoff. Water supply available in San Luis Reservoir is

pumped from the Delta at the Jones Pumping Plant or the Harvey O. Banks Pumping Plant in the

fall, winter, and spring months – when demands are low and surplus water is available.

16. During the irrigation season, water demands from the Authority’s member agencies

far exceed the capacity of the Jones Pumping Plant. Reclamation attempts to meet the demands of

the Authority’s member agencies through direct diversions at the Jones Pumping Plant and

through releases of water stored in San Luis Reservoir that was previously pumped at the Jones

Pumping Plant.

17. Unless enjoined, and without adjusting for water costs attributable to the 2009

Salmonid BiOp, if any are applicable while Action 2 is in effect, Action 2 will prevent

Reclamation from pumping up to 115,000 to 160,000 acre-feet of water or more, see paragraphs

11 to 14, above, into San Luis Reservoir and would have made that water available during the

irrigation season to meet demands. That water that Reclamation could pump if Action 2 did not

regulate CVP operations is un-stored, surface runoff flowing into the tributaries below Dams and

into the Delta because of storm events. Thus, Reclamation and DWR could not store that water



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{00217142; 1} REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER










CASE NO. 1:09-cv-407-OWW-DLB 1:09-cv-422-OWW-DLB 1:09-cv-631-OWW-DLB 1:09-cv-892-OWW-GSA PARTIALLY CONSOLIDATED WITH: 1:09-cv-480-OWW-GSA REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS SAN LUIS & DELTA-MENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT’S MOTION FOR TEMPORARY RESTRAINING ORDER; DECLARATION OF JONATHAN R. MARZ



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{00217142; 1} - 1 - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs San Luis & Delta-Mendota Water Authority (“Authority”) and Westlands

Water District (“Westlands”) (collectively, “San Luis Plaintiffs”), hereby request that the Court

take judicial notice pursuant to Federal Rules of Evidence, Rule 201(b), of the following:

1. Exhibit 1, California Department of Fish and Game “Delta Smelt Distribution

Maps,” from the “Spring Kodiak Trawl Survey #11 of 2010” (Exhibit 1-A), and “Spring Kodiak

Trawl Survey #1 of 2010” (Exhibit 1-B), which were available on the California Department of

Fish Game’s website as of February 8, 2010. These documents are properly judicially noticeable

pursuant to Federal Rules of Evidence Rule 201(b), which authorizes judicial notice of a “fact . .

. not subject to reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.” See also United States v. 14.02

Acres, 547 F.3d 943, 955 (9th Cir. 2008) (judicial notice is proper for records and reports of

administrative agencies). The map from the “Spring Kodiak Trawl Survey #1 of 2010” (Exhibit

1-B) was part of San Luis Plaintiffs’ request for judicial notice in support of their motion for

temporary restraining order filed in January 2010. “Exhibit 1” to Doc. 516.

2. Exhibit 2, Bureau of Reclamation (“Reclamation”) Fish Reports from the Central

Valley Operations Office called “Central Valley Operations Office – Delta Smelt and Splittail –

February 10” (Exhibit 2-A), available on Reclamation’s website as of February 8, 2010,

“Central Valley Operations Office – Delta Smelt and Splittail – January 10” (Exhibit 2-B),

available on Reclamation’s website as of February 9, 2010, and “Central Valley Operations

Office – Delta Smelt and Splittail – December 09” (Exhibit 2-C), available on Reclamation’s

website as of February 9, 2010. These documents are properly judicially noticeable pursuant to

Federal Rules of Evidence Rule 201(b), which authorizes judicial notice of a “fact . . . not subject

to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” See also United States v. 14.02 Acres, 547 F.3d 943,

955 (9th Cir. 2008) (judicial notice is proper for records and reports of administrative agencies).

The January 2010 and December 2009 Fish Reports (Exhibits 2-B and 2-C) were part of San


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Luis Plaintiffs’ second request for judicial notice in support of their motion for temporary

restraining order filed in January 2010. “Exhibit 2” and “Exhibit 3” to Doc. 545.

Dated: February 9, 2010 KRONICK, MOSKOVITZ, TIEDEMANN &





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DECLARATION OF JONATHAN R. MARZ

I, JONATHAN R. MARZ, declare as follows:

1. I am an attorney at law, duly licensed to practice law before all courts of the State

of California and before this court. I am an associate attorney at Diepenbrock Harrison, counsel

of record for the San Luis & Delta-Mendota Water Authority and Westlands Water District in

this action. I have personal knowledge of the facts stated in this declaration and if sworn as a

witness could and would competently testify thereto.

2. Attached hereto as Exhibit 1 are true and correct copies of two California

Department of Fish and Game “Delta Smelt Distribution Maps” from the “Spring Kodiak Trawl

Survey #11 of 2010” (Exhibit 1-A) and “Spring Kodiak Trawl Survey #1 of 2010” (Exhibit 1-B),

available at: http://www.dfg.ca.gov/delta/data/skt/DisplayMaps.asp (as of February 8, 2010).

3. Attached hereto as Exhibit 2 are true and correct copies of Bureau of Reclamation

Fish Reports from the Central Valley Operations Office called “Central Valley Operations Office

– Delta Smelt and Splittail – February 10” (Exhibit 2-A), available at:

http://www.usbr.gov/mp/cvo/vungvari/dsmeltsplitdly.pdf (as of February 8, 2010), and “Central

Valley Operations Office – Delta Smelt and Splittail – January 10” (Exhibit 2-B), available at:

http://www.usbr.gov/mp/cvo/vungvari/dsmeltsplit0110.pdf (as of February 9, 2010), “Central

Valley Operations Office – Delta Smelt and Splittail – December 09” (Exhibit 2-C), available at:

http://www.usbr.gov/mp/cvo/vungvari/dsmeltsplit1209.pdf (as of February 9, 2010).

I declare under penalty of perjury of the laws of the United States of America and the State

of California that the foregoing is true and correct.

Executed this 9th day of February, 2010, in Sacramento, California. /s/ [Jonathan R. Marz]________

JONATHAN R. MARZ


DIEPENBROCK


CORPORATION

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4

5

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28


IDENTIFICATION OF COUNSEL Thomas W. Birmingham, State Bar No. 110898 General Manager/General Counsel Westlands Water District 3130 N. Fresno Street Fresno, CA 93703 Telephone: (559) 224-1523 Facsimile: (559) 241-6277 Email: [email protected]


mailto:[email protected]

Exhibit 1A-1B



mrj

Typewritten Text

Exhibit 1A


mrj

Typewritten Text

Exhibit 1B

Exhibits 2A-2B-2C


CEN

TRA

L VA

LLEY O

PERA

TION

S OFFIC

ED

ELTA SM

ELT AN

D SPLITTA

ILFebruary-10

Colored background verified w

ith DFG

's report Prelim

inary Data - Subject to C

hangeD

elta Smelt

SplittailL

ongfinPum

pingD

aily TotalD

aily TotalD

ailyC

ombined

Daily

Com

binedD

ailyIn C

FSIn A

cre FeetD

ATE

TotalD

aily14-D

ayTotal

Daily

14-Day

TotalSW

PLarval Y

or NC

VP

Larval Y

or NTotal

Average

SWP

CV

PTotal

Average

SWP

Larval Y

or NC

VP

Larval Y

or N

1-Feb-100

00

06

06

170

03,731

3,3137,044

7,4016,571

13,9720.0

0.02-Feb-10

00

00

08

817

00

3,8833,432

7,3157,702

6,80714,509

0.00.0

3-Feb-100

44

05

49

170

03,980

3,5057,486

7,8956,953

14,8480.0

0.64-Feb-10

00

00

04

418

00

4,1573,484

7,6418,245

6,91015,155

0.00.0

5-Feb-100

00

09

09

180

03,042

3,4496,491

6,0336,842

12,8750.0

0.06-Feb-10

08

81

90

918

00

2,9053,993

6,8985,763

7,92013,683

0.01.0

7-Feb-100

00

18

08

170

02,970

4,1097,079

5,8918,150

14,0410.0

0.08-Feb-10

01

015

00

00

#DIV

/0!#D

IV/0!

9-Feb-100

10

140

00

0#D

IV/0!

#DIV

/0!10-Feb-10

01

010

00

00

#DIV

/0!#D

IV/0!

11-Feb-100

10

80

00

0#D

IV/0!

#DIV

/0!12-Feb-10

01

08

00

00

#DIV

/0!#D

IV/0!

13-Feb-100

10

60

00

0#D

IV/0!

#DIV

/0!14-Feb-10

01

04

00

00

#DIV

/0!#D

IV/0!

15-Feb-100

10

30

00

0#D

IV/0!

#DIV

/0!16-Feb-10

01

03

00

00

#DIV

/0!#D

IV/0!

17-Feb-100

10

20

00

0#D

IV/0!

#DIV

/0!18-Feb-10

01

02

00

00

#DIV

/0!#D

IV/0!

19-Feb-100

10

10

00

0#D

IV/0!

#DIV

/0!20-Feb-10

00

01

00

00

#DIV

/0!#D

IV/0!

21-Feb-100

00

00

00

0#D

IV/0!

#DIV

/0!22-Feb-10

00

00

00

00

#DIV

/0!#D

IV/0!

23-Feb-100

00

00

00

0#D

IV/0!

#DIV

/0!24-Feb-10

00

00

00

00

#DIV

/0!#D

IV/0!

25-Feb-100

00

00

00

0#D

IV/0!

#DIV

/0!26-Feb-10

00

00

00

00

#DIV

/0!#D

IV/0!

27-Feb-100

00

00

00

0#D

IV/0!

#DIV

/0!28-Feb-10

00

00

00

00

#DIV

/0!#D

IV/0!

Tota l0

1212

XX

XX

3716

53X

XX

X0

024,669

25,28549,954

48,93050,153

99,083X

XX

XX

XX

XO

fficial numbers are posted on D

FG's w

ebsiteN

ote: Bold num

bers are not verified by DFG

.

Delta Sm

elt D

aily Density

SWP

CV

PTracy

Com

binedB

anksTracy

Com

binedB

anks


mrj

Typewritten Text

mrj

Typewritten Text

Exhibit 2A

CEN

TRA

L VA

LLEY O

PERA

TION

S OFFIC

ED

ELTA SM

ELT AN

D SPLITTA

ILJanuary-10


ith DFG

's report Prelim


hangeD

elta Smelt

SplittailL

ongfinPum

pingD

aily TotalD

aily TotalD

ailyC

ombined

Daily

Com

binedD

ailyIn C

FSIn A

cre FeetD

ATE

TotalD

aily14-D

ayTotal

Daily

14-Day

TotalSW

PLarval Y

or NC

VP

Larval Y

or NTotal

Average

SWP

CV

PTotal

Average

SWP

Larval Y

or NC

VP

Larval Y

or N

1-Jan-100

00

00

00

00

02,939

1,0093,948

5,8302,001

7,8310.0

0.02-Jan-10

00

00

00

00

00

2,9441,008

3,9525,839

2,0007,839

0.00.0

3-Jan-100

00

00

00

00

02,946

1,0083,955

5,8442,000

7,8440.0

0.04-Jan-10

00

00

00

00

00

3,8591,006

4,8657,654

1,9969,650

0.00.0

5-Jan-100

00

00

00

00

04,354

1,0045,359

8,6371,992

10,6290.0

0.06-Jan-10

00

00

00

00

00

4,5151,002

5,5178,955

1,98710,942

0.00.0

7-Jan-100

00

00

00

00

03,937

1,0014,938

7,8091,986

9,7950.0

0.08-Jan-10

00

00

00

00

00

3,9081,000

4,9077,751

1,9839,734

0.00.0

9-Jan-100

00

00

00

00

03,355

1,0014,356

6,6541,986

8,6400.0

0.010-Jan-10

00

00

00

00

00

3,5501,004

4,5547,041

1,9919,032

0.00.0

11-Jan-100

00

00

00

00

03,327

1,0024,330

6,6001,988

8,5880.0

0.012-Jan-10

00

00

20

20

00

3,5071,005

4,5126,956

1,9938,949

0.00.0

13-Jan-100

00

00

00

00

03,991

1,0095,000

7,9172,001

9,9180.0

0.014-Jan-10

00

00

00

00

00

4,3211,006

5,3268,570

1,99510,565

0.00.0

15-Jan-100

00

00

00

00

05,096

9996,095

10,1071,982

12,0890.0

0.016-Jan-10

00

00

00

00

00

4,8611,003

5,8649,641

1,99011,631

0.00.0

17-Jan-100

00

00

00

00

05,424

1,0076,431

10,7591,997

12,7560.0

0.018-Jan-10

00

00

60

61

00

4,8761,007

5,8849,672

1,99811,670

0.00.0

19-Jan-100

00

06

06

10

04,936

1,0115,947

9,7902,006

11,7960.0

0.020-Jan-10

00

00

00

01

00

4,8961,013

5,9099,712

2,00911,721

0.00.0

21-Jan-100

00

02

02

10

04,944

1,5956,539

9,8063,164

12,9700.0

0.022-Jan-10

00

00

00

01

00

5821,831

2,4121,154

3,6314,785

0.00.0

23-Jan-100

00

04

48

20

03,802

1,8325,633

7,5413,633

11,1740.0

0.024-Jan-10

00

00

024

243

00

3,4322,453

5,8866,808

4,86611,674

0.00.0

25-Jan-100

00

02

2830

60

02,734

2,6965,430

5,4225,348

10,7700.0

0.026-Jan-10

00

00

124

167

00

4,6722,706

7,3789,267

5,36814,635

0.00.0

27-Jan-100

00

050

454

100

03,900

3,1807,080

7,7366,307

14,0430.0

0.028-Jan-10

00

00

184

2212

00

4,6733,329

8,0029,268

6,60415,872

0.00.0

29-Jan-100

00

010

010

130

05,339

3,3278,666

10,5906,599

17,1890.0

0.030-Jan-10

00

00

188

2615

00

5,3533,327

8,68010,618

6,59917,217

0.00.0

31-Jan-1 00

00

00

2828

170

03,634

3,3266,961

7,2096,598

13,8070.0

0.0Total

0X

XX

X130

104234

XX

XX

00

124,60749,709

174,316247,157

98,598345,755

XX

XX

XX

XX

Official num

bers are posted on DFG

's website

Note: B

old numbers are not verified by D

FG.

SWP

CV

P

Delta Sm

elt D

aily Density

TracyC

ombined

Banks

TracyC

ombined

Banks


mrj

Typewritten Text

Exhibit 2B

CEN

TRA

L VA

LLEY O

PERA

TION

S OFFIC

ED

ELTA SM

ELT AN

D SPLITTA

ILD

ecember-09


ith DFG

's report Prelim


hangeD

elta Smelt

SplittailL

ongfinPum

pingD

aily TotalD

aily TotalD

ailyC

ombined

Daily

Com

binedD

ailyIn C

FSIn A

cre FeetD

ATE

TotalD

aily14-D

ayTotal

Daily

14-Day

TotalSW

PLarval Y

or NC

VP

Larval Y

or NTotal

Average

SWP

CV

PTotal

Average

SWP

Larval Yor

NC

VP

Larval Yor

N

1-Dec-09

00

00

00

00

00

3,8841,981

5,8657,704

3,92911,633

0.00.0

2-Dec-09

04

40

00

00

00

3,4791,987

5,4666,900

3,94210,842

0.01.0

3-Dec-09

00

00

00

00

00

1,9411,989

3,9303,850

3,9457,795

0.00.0

4-Dec-09

00

00

00

00

00

1,9441,991

3,9353,855

3,9507,805

0.00.0

5-Dec-09

00

00

00

00

00

1,9451,988

3,9333,858

3,9437,801

0.00.0

6-Dec-09

00

00

00

00

00

1,9571,988

3,9453,882

3,9437,825

0.00.0

7-Dec-09

00

00

00

00

00

2,0191,982

4,0014,005

3,9317,936

0.00.0

8-Dec-09

00

00

00

00

00

1,9611,973

3,9343,890

3,9147,804

0.00.0

9-Dec-09

00

00

00

00

00

1,9691,965

3,9343,905

3,8987,803

0.00.0

10-Dec-09

00

00

00

00

00

2,0601,965

4,0254,086

3,8987,984

0.00.0

11-Dec-09

00

00

40

40

00

2,3261,970

4,2964,614

3,9088,522

0.00.0

12-Dec-09

00

00

00

00

00

2,3671,976

4,3424,694

3,9198,613

0.00.0

13-Dec-09

00

00

00

00

00

2,8391,985

4,8245,631

3,9389,569

0.00.0

14-Dec-09

00

00

00

00

00

3,8661,979

5,8457,668

3,92511,593

0.00.0

15-Dec-09

00

00

00

00

00

4,4091,952

6,3618,746

3,87112,617

0.00.0

16-Dec-09

00

00

00

00

00

4,7012,561

7,2629,324

5,08014,404

0.00.0

17-Dec-09

00

00

00

00

00

4,8542,934

7,7889,627

5,82015,447

0.00.0

18-Dec-09

00

00

00

00

00

4,4902,935

7,4248,905

5,82114,726

0.00.0

19-Dec-09

00

00

00

00

00

4,4852,932

7,4178,896

5,81514,711

0.00.0

20-Dec-09

00

00

00

00

00

4,4312,928

7,3598,788

5,80814,596

0.00.0

21-Dec-09

00

00

00

00

00

3,9322,925

6,8577,799

5,80113,600

0.00.0

22-Dec-09

00

00

00

00

00

3,4462,931

6,3786,836

5,81412,650

0.00.0

23-Dec-09

00

00

00

00

00

2,9572,840

5,7985,866

5,63411,500

0.00.0

24-Dec-09

00

00

00

00

00

5,0952,243

7,33710,105

4,44814,553

0.00.0

25-Dec-09

00

00

00

00

00

4,4991,980

6,4798,923

3,92812,851

0.00.0

26-Dec-09

00

00

00

00

00

4,0111,989

6,0007,955

3,94611,901

0.00.0

27-Dec-09

00

00

00

00

00

3,9971,990

5,9887,929

3,94811,877

0.00.0

28-Dec-09

00

00

00

00

00

3,9561,991

5,9487,847

3,95011,797

0.00.0

29-Dec-09

00

00

00

00

00

3,4331,993

5,4266,809

3,95310,762

0.00.0

30-Dec-09

00

00

00

00

00

3,5071,290

4,7976,956

2,5589,514

0.00.0

31-Dec-09

00

00

00

00

00

2,9641,007

3,9725,880

1,9987,878

0.00.0

Total0

44

XX

XX

40

4X

XX

X0

0103,722

67,142170,864

205,733133,176

338,909X

XX

XX

XX

XO

fficial numbers are posted on D

FG's w

ebsiteN

ote: Bold num

bers are not verified by DFG

.

SWP

CV

P

Delta Sm

elt D

aily Density

TracyC

ombined

Banks

TracyC

ombined

Banks


mrj

Typewritten Text

Exhibit 2C

Documents

CVP contractors seek Temporary Restraining Order on Smelt BiOP